Guest Writer:
Dispossession by the law: How the Israeli judicial system utilises Ottoman land law to expel and dispossess the Palestinian Bedouin

Much has been said about the role that the Israeli Supreme Court and the judiciary generally have played in Judaising the Palestinian space, by confirming Israeli governmental practices of dispossessing Palestinians of their land, major house demolitions and frequent displacement. This role was apparent in the first years of Israeli statehood when approving mass expropriation of Palestinian refugees’ property and the confiscation of lands that belonged to the remaining Palestinians who became Israeli citizens after 1948. Land dispossession continues until the present, and so does the role and position of the Israeli Supreme Court. This role probably has not been as clear as it was during the first two weeks of May 2015. The specific target this time were the Palestinian Bedouin communities in Israel and in the West Bank. In the West Bank the court approved the expulsion and house demolitions of a Palestinian village to allow for the expansion of an existing Jewish settlement; in the Negev the court approved the expulsion and house demolition of the Palestinian Bedouin village of Um Al-Hiran in order to make room for a new Jewish settlement; and finally the court approved the state position that the Bedouin have no land rights and in most cases they were trespassers on state land.

On 4 May, 2015, the Israeli Supreme Court dismissed a petition from the residents of the village of Susya, who hoped that the court would stop their third displacement and the demolition of their shacks. After their original displacement in the 1980s, the residents of Susya moved to live in caves in the southern hills of Hebron. Yet the Israeli army expelled them from the caves and sealed their entrances to prevent the people from returning to live there. Insisting upon returning to their lands and habitation sites, the residents had to build improvised homes nearby made of tents, wood and metal. These structures were then subject to Israeli demolition orders that were approved on 4 May by the court, rendering the residents homeless.

Only a day after this ruling, the court approved the expulsion of Um Al-Hiran, which is only 20 km south-west of Susya, in the Negev inside Israel. The court rejected an appeal that was filed by the Abu Al-Kia’an family against the decision of the government and planning authorities to evict the 1,000 members of the family who lived in Um Al-Hiran. In their stead, and on the land that the family had been cultivating, the government will build a new Jewish settlement named Hiran. The state argued in court that the Bedouin were trespassers on state land; based on this claim it decided to establish a settlement and to authorise the eviction of the inhabitants in return for compensation. As I write these lines in late November, the Israeli police are present in the village and the bulldozers are expected to arrive at any moment to demolish some of the houses.

Several days later, on 14 May, 2015, the Supreme Court delivered another decision pertaining to the Bedouin communities of the Negev, in the matter of the Al-Uqbi family, who appealed against a decision of the Beersheba District Court which dismissed the family’s claim to ownership rights over lands that they have possessed for decades up until their displacement by the Israeli authorities in the early 1950s. Part of Al-Arakib, a village that has been destroyed by the state more than one hundred times since 2010, stands on part of the claimed lands. The Supreme Court ruled on the basis of Ottoman and British Mandate laws – and in line with its original precedent from the 1980s – that the land in question was “dead (mawat) land”, and thus state land. “Dead land” is defined under Ottoman law as land that is not possessed or cultivated by anyone and which lies beyond the reach of a loud voice, a thirty-minute walk or an estimate of one and a half miles from an inhabited area. Based on this legal doctrine, the Israeli government and courts view the Bedouin communities in Israel, and similarly in many areas of the West Bank, as trespassers on state land. The court refused to change this four-decade old legal doctrine despite the overwhelming evidence to the effect of land possession and cultivation, and tax payments since the Mandate years. However, a historical review reveals that the court drew on such historical legal categories in a selective and manipulative manner that rendered them meaningless.

The 1948 war had catastrophic consequences for the Negev Arab Bedouin, only 13 per cent of whom remained within the armistice boundaries of Israel; the remainder became refugees in neighbouring states. Some 11,000 Bedouin remained in the Negev, comprising nineteen of the ninety tribes that had been in that area before the war. A decision on the fate of the Bedouin who remained in the Negev lay before the then Prime Minister, David Ben-Gurion, and other politicians and military figures, immediately after the fighting in the Negev. Ben-Gurion initially wanted to expel the remaining Bedouin, but he changed his mind and weighed that idea against two additional proposals set before him: transferring the Bedouin to mixed Jewish-Arab cities in the centre of the country or concentrating them in a defined area and then settling them in three towns. The latter of the two proposals was adopted, and in its wake the army started evicting, relocating and concentrating the Bedouin. From 1949 until the mid-1950s, eleven Bedouin tribes were moved by force from the western Negev to the “siyaj” (or sayag) area (fenced or closed region). There they joined eight other tribes that had lived originally within the siyaj. The boundaries of this area, which covered about 8 per cent of the Negev area, were determined by considerations of security and land control; its inhabitants were kept under Israeli military rule until 1966, and within it Bedouin towns were eventually established. The boundaries of the siyaj, even if they are not visible today, still exist and are in effect.1

The first years of the Israeli state shaped the human and legal geography of the Negev Bedouin, notably their eviction, removal, transfer and criminalisation in relation to housing and land ownership or possession. The forms of eviction varied slightly from community to community, but in general they involved a combination of force, threats of the use of force, and official government and military pronouncements and orders. The military commander of the Negev would usually issue an order, sign it in Arabic and Hebrew, and hand it to the shaikh of the tribe. The order would state that the tribe had to move from its place of residence for a temporary period of up to six months. In practice, the order was indefinite and none of the residents was allowed to return to his original lands. Under government policy, or its lack thereof, the concentration of the Bedouin tribes in the siyaj area created a space that was constructed and characterised in later years by illegality. The tribes were resettled and worked the land they were ordered to settle on. The allocation of land was partly oral and informal, and partly official, through a lease from the state.

Letter from the Israeli military commander of Beersheba, dated 19 July 1949, to the shaikh of Al-Uqbi, requesting the latter to provide the commander with a list of all lands that are cultivated by his tribe, their name, location, size and type of crops, and those lands that its owners or partners are outside the borders of Israel, within a week from the issuance of the letter. (Source: Al-Uqbi Family personal papers.)

For example, until 1956, the state authorities transferred the Abu Al-Kia’an family by force four times until it was settled in Um Al-Hiran. There, Uri Lubrani – who was then the prime minister’s adviser on Arab affairs – allocated to the entire family a total of 7,000 dunams (approximately 1,730 acres) of land.

The Al-Uqbi family suffered a similar fate of frequent displacement. Usually, the land allocated to the evicted and transferred families belonged to other tribes in the Negev or to Bedouin refugees. Immediately after the evictions, the land that had been emptied or declared a closed military area was expropriated under Israeli law (the 1950 Abandoned Property Law or the 1953 Land Acquisition Law). Generally, this history is ignored by the Israeli courts and excluded from the application of the formal law. The court thus plays a major role in promoting the Zionist narrative of Bedouin criminality while suppressing the communities’ narratives of expulsion and relocation. In addition, there is a substantial body of legal history that is attached to the lands claimed by the Negev Bedouin, which is also usually ignored or misinterpreted.

In 1952, the Israeli Minister of Justice appointed a special committee to clarify the question of land ownership of the Negev Bedouin.2 In a confidential report presented to the minister of justice, the committee concluded that “it is known for a fact that during the [British] Mandate period, large tracts of land were registered under the names of the Bedouin, based on proof that these lands were cultivated by them throughout the period of qualifying land possession [10 years], and an important part of these lands were transferred [through sale], after being registered, to Keren Kayemet [the Jewish National Fund] to other Jewish companies, and to individual Jews. Thus, in this matter there are hundreds of precedents, and we are of the opinion, that the government of Israel will not be able to, and should not, ignore them… After all, it is possible that the Bedouin have proof of possession of many other areas, such as receipts for tax payments of tithe that will serve as proof of cultivation of other large areas.” Therefore, “one should not refrain from recognising the Bedouin rights to ownership of the areas that they prove they have cultivated for a long time (the period of limitation),” that is, a period of ten years as required by Ottoman and British law.

In these few sentences, the committee summarised important facts in the history of the Bedouin and their rights. Bedouin cultivated between 2 million and 3.5 million dunams (up to 3,500 sq km) in the Beersheba region. They grew mainly barley, which was known for its quality, some of which was exported via Gaza for the beer industry in Britain and the rest of Europe before World War One. Through agriculture and the payment of taxes, which were the main means of obtaining land rights, Bedouin obtained such rights, even if these were not registered formally. Bedouin agriculture, absurd as it may sound to some of us, did exist in the Negev in varying degrees for centuries. For example, the American traveller William Thomson, who passed through Bedouin land in the Negev in 1857, observed: “What sort of country have we before us today? Beautiful in itself, but monotonous – wheat, wheat, a very ocean of wheat.” Cultivation of the land was one of the main sources for obtaining ownership rights under Ottoman rule. The Ottoman and British administrations recognised the Bedouin ownership system and the internal registers of shaikhs who also served as tax collectors. In addition, there were Bedouin who registered their land in the land registry during the Ottoman period.

During the Mandate period, too, land rights continued to be anchored in various forms, both formal and informal. Moreover, when land was sold to Zionist bodies or individuals, the Bedouin owners would register the land under their own names, and only later would they transfer the rights to the purchasers. As long as those with rights to the land paid the taxes, they met the main demands and expectations of the Ottoman and British authorities, who did not bother to establish a fully-furnished legal or administrative apparatus in the Beersheba district. The orderly registration of rights introduced by the British in 1928, known as the land title settlement process, did not reach the Negev until 1948. However, the British Mandatory government noted that when the arrangement of land rights eventually reached Beersheba, it was expected that some 2 million dunams would be considered as Bedouin-owned land. With the change in the political landscape in 1948, the ownership regime changed too, along with the region’s history.

In 1970 the Israeli government initiated a process of land title settlement among the Negev Bedouin, especially in the siyaj area. By 1979, Bedouin had submitted 3,220 land claims to a total of 1.5 million dunams, which included half a million dunams of pasture. Part of the land claimed was outside the siyaj and had already been expropriated and registered as state land. A committee appointed by the Israeli government in 1975, headed by Plia Albeck of the state attorney’s office, noted that the Bedouin-claimed land was 850,000 dunams and stated that the Bedouin had no legal rights to the land. Relying on British and Ottoman laws, Albeck determined that the land was “dead land” — land that was far from habitation — that was neither possessed nor cultivated, and therefore it belonged to the state. This same legal doctrine along with others similar were deployed by Albeck on behalf of the Israeli government to expropriate lands for Jewish settlements in the West Bank. Though in this paper I focus mostly on the Israeli practices in the Negev, the expulsion of Susya and the use of similar legal doctrines demonstrate the invisibility of the Green (1949 Armistice) Line in the eyes of Israeli officials and when analysing Israel’s land policies.

However, because Albeck expected that the court would not allow the eviction of Bedouin citizens from the land without compensation, she recommended that the government should freeze the land ownership claims and negotiate with the claimants. The compensation formulas were complicated and varied from one claimant to another, but they combined a land plot for building in state-planned Bedouin towns, water for agriculture and financial compensation, amounting generally to about 10 per cent of the claim. The compensation offer was conditional on the claimant’s resettlement into one of the state-built Bedouin townships that were planned to concentrate the Bedouin in urban centres. The government adopted the recommendations, froze the claims and embarked on negotiations. From the start, it was clear to the government that the Bedouin were not enthusiastic about the proposal. By 2005, the government had resolved only 15 per cent of the claims, most of them by force during the eviction from Tel El-Meleh area in the Negev to build the Nevatim Airbase, which was in part relocated from the Sinai Peninsula following the peace agreement with Egypt. Around 2005, the state began to submit counterclaims to the original claims of the Bedouin, and to this day it has won 100 per cent of the cases (numbering nearly 300), the latest of which was the Al-Uqbi ruling.

The adoption of Albeck’s recommendations constituted the state’s choice to reach a decision vis-à-vis the Bedouin communities in the Negev that would meet its political aspiration of land control through negotiation. However, in the past decade the Israeli government moved from negotiation mode to one of confrontation by increasing the rate of house demolitions and by initiating the policy of land counter-claims. At the same time, the Israeli government realised that things are getting out of control, as neither the land claims nor the status of the “unrecognised” villages were resolved. Successive Israeli governments continue to endorse the Negev Bedouin land question without an appropriate solution in sight. As such, since 2007, the Israeli government has moved towards developing a comprehensive plan that will address the land and housing questions in Beersheba as well as socio-economic development.

Only after 2007 has the government appointed several committees (the Goldberg, Amidror, Prawer and Begin committees) to look into the issue. The latest attempt resulted in the Prawer Bill, which was frozen and not taken to a vote in the Knesset due to the major opposition to the potentially massive displacement of up to 40,000 Bedouin from their villages. Prawer, however, was not cancelled, and it is expected to be brought again before the Knesset in its current version or with some amendments.

In the meantime, the Bedouin urbanisation project has failed; tens of thousands of Bedouin live in distressed conditions in unrecognised villages; and some 2,500 ownership claims continue to keep the authorities busy and lead to evictions and demolitions, but nothing is really resolved on the ground. At the same time, the Israeli authorities are intensifying their urbanisation and displacement policies against the Bedouins in Areas C of the West Bank. What is clear is that the grammar of the colonial project of population elimination and replacement continues to take place through dispossession, demolition and displacement. No solution seems to be on the horizon or any intention on the government side to make a fundamental change in its policy towards the Bedouin. They continue to be perceived by the Israeli government as trespassers, and as obstacles to “development”, for which read Judaisation.

A shortened version of this article was published by the Social History Workshop in Partnership with the Journal of Levantine Studies.

Footnotes

1 An example of this is one of the sections of the Prawer Plan that was later amended, which forbade Bedouin settlement outside the siyaj. Also, most of those who laid claim to land within the siyaj received more favourable compensation offers than those who claimed land outside it.

2 Its three members were Yehosua Palmon, the prime minister’s adviser on Arab affairs; Binyamin Fishman, of the Department of Land Title Settlement; and Yosef Weitz, the representative of Keren Kayemet L’Yisrael (the Jewish National Fund).

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